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VIRBAC CORPORATION PAGE 16
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, made and entered into as of
the 4th day of April, 2001, by and between VIRBAC CORPORATION, a Delaware
corporation ("Virbac"), PM RESOURCES, INC., a Missouri corporation ("PM
Resources"), ST. XXX LABORATORIES, INC., a California corporation ("St. XXX"),
FRANCODEX LABORATORIES, INC., a Kansas corporation ("Francodex"), and VIRBAC AH,
INC., a Delaware corporation ("Virbac AH," and collectively with Virbac, PM
Resources, St. XXX and Francodex referred to herein as the "Borrowers"), and
FIRST BANK, a Missouri state banking corporation ("Bank").
WITNESSETH:
WHEREAS, Borrowers heretofore jointly and severally executed and
delivered to Bank a Revolving Credit Note dated September 7, 1999, in the
principal amount of up to Ten Million Dollars ($10,000,000.00), payable to the
order of Bank as therein set forth, which Revolving Credit Note has been most
recently amended and restated by that certain Revolving Credit Note dated
December 30, 1999 in the principal amount of up to Twelve Million Three Hundred
Fifty Thousand Dollars ($12,350,000.00) (as amended and restated, the "Note");
and
WHEREAS, the Note is described in a certain Credit Agreement dated as
of September 7, 1999 made by and among Borrowers and Bank, as previously amended
by an Amendment to Credit Agreement dated as of December 30, 1999 made by and
among Borrowers and Bank and by a Second Amendment to Credit Agreement dated as
of May 1, 2000 made by and among Borrowers and Bank (as amended, the "Loan
Agreement," all capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to them in the Loan Agreement); and
WHEREAS, Borrowers and Bank desire to increase the amount of the loans,
to extend the maturity of the facility to July 31, 2003 and to make certain
other amendments thereto on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
provisions and agreements hereinafter set forth, the parties hereto do hereby
mutually promise and agree as follows:
1. The Note shall be amended and restated in the form of that
certain Revolving Credit Note attached hereto as Exhibit C, to amend the maximum
principal amount thereof to Twelve Million One Hundred Thousand Dollars
($12,100,000.00) for the period of time up to and including August 30, 2001,
reducing automatically on August 31, 2001 to the new maximum amount of Eleven
Million Eight Hundred Fifty Thousand Dollars ($11,850,000.00) for the period up
to and including
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
September 29, 2001, reducing automatically on September 30, 2001 to the new
maximum amount of Eleven Million Six Hundred Thousand Dollars ($11,600,000.00)
for the period up to and including October 30, 2001, reducing automatically on
October 31, 2001 to the new maximum amount of Eleven Million Three Hundred Fifty
Thousand Dollars ($11,350,000.00) for the period up to and including November
29, 2001, reducing automatically on November 30, 2001 to the new maximum amount
of Eleven Million One Hundred Thousand Dollars ($11,100,000.00) for the period
up to and including February 27, 2002, reducing automatically on February 28,
2002 to the new maximum amount of Ten Million Nine Hundred Fifty Thousand
Dollars ($10,950,000.00) for the period up to and including May 30, 2002,
reducing automatically on May 31, 2002 to the new maximum amount of Ten Million
Eight Hundred Thousand Dollars ($10,800,000.00) and thereafter reducing as set
forth in Section 3.1(b) of the Loan Agreement, and to make certain amendments as
set forth therein. All references in the Loan Agreement and the other
Transaction Documents to the "Note," the "Revolving Credit Note" and other
references of similar import shall hereafter be amended and deemed to refer to
the Note in the form of the Revolving Credit Note, as amended and restated in
the form attached hereto as Exhibit C. Borrowers hereby agree that on or before
5:00 p.m. (St. Louis time) on the last day of each month from August 31, 2001 up
to and including July 31, 2003, Borrowers shall jointly and severally repay to
Bank, without any requirement of demand or notice from Bank, an amount equal to
the amount by which the outstanding principal balance of the Note exceeds the
maximum principal amounts set forth above as of such month-end dates, together
with all other amounts then due under the terms of the Loan Agreement and the
Note.
2. The third paragraph beginning with the word "WHEREAS" on the
first page of the Loan Agreement shall be deleted in its entirety and in its
place shall be substituted the following:
WHEREAS, Borrowers, including Virbac AH and Francodex which
have been added as parties to the credit facilities, have requested
that the aggregate amount thereof be increased to an aggregate
principal amount of up to Twelve Million One Hundred Thousand Dollars
($12,100,000.00) and otherwise amended on the terms and conditions set
forth herein, of which joint and several loan facility from Bank Eight
Million Dollars ($8,000,000.00) shall be subject to a Borrowing Base
(as set forth herein) ("Facility A"), Three Million One Hundred
Thousand Dollars ($3,100,000.00) shall be a reducing revolving credit
line from Bank ("Facility B") that, on February 28, 2002 the maximum
principal amount of such loan facility and Facility B shall reduce
automatically as set forth in Section 3.1(b) herein, and the remaining
One Million Dollars ($1,000,000.00) shall be a reducing revolving
credit line from Bank ("Facility C"), that on August 31, 2001 the
maximum principal amount of such loan facility and Facility C shall
reduce automatically as set forth in Section 3.1(g) herein, with such
loans to mature on July 31, 2003; and
3. Section 1 of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
The "Term" of this Agreement shall commence on the date hereof
and shall end on July 31, 2003, unless earlier terminated upon the
occurrence of an Event of
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
Default under this Agreement, or unless subsequently extended by Bank,
in its sole discretion and without obligation to do so, pursuant to the
terms of Section 3.16 herein.
4. The definition of "Bank's Commitment" in Section 2 of the Loan
Agreement shall be deleted in its entirety and in its place shall be substituted
the following:
Bank's Commitment shall mean the sum of Bank's Facility A
Commitment plus Bank's Facility B Commitment plus Bank's Facility C
Commitment.
5. The definition of "Floating Rate Margin" in Section 2 of the
Loan Agreement shall be deleted in its entirety and in its place shall be
substituted the following:
Floating Rate Margin shall mean Negative Three-Fourths of One
Percent (-0.75%) up to and including April 30, 2001, and thereafter,
commencing on the first day of the second month following each fiscal
quarter-end or fiscal year-end, the "Floating Rate Margin" shall (based
upon Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
as of the end of the immediately preceding quarter (or fiscal year)
determined by reference to Virbac's quarter-end (or fiscal year-end)
financial statements for such preceding fiscal quarter-end (or fiscal
year-end)), (i.e., for the period beginning May 1, 2001 by referencing
Virbac's March 31, 2001 fiscal quarter-end financial statements), mean
the following:
(i) Negative One-Fourth of One Percent (-0.25%), if
Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
shall be less than 2.5 to 1.0 as determined pursuant to Section
7.1(i)(i) by reference to Virbac's most recent quarter-end (or fiscal
year-end) financial statements,
(ii) Negative One-Half of One Percent (-0.50%), if
Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
shall be greater than or equal to 2.5 to 1.0 but less than 3.0 to 1.0
as determined pursuant to Section 7.1(i)(i) by reference to Virbac's
most recent quarter-end (or fiscal year-end) financial statements, or
(iii) Negative Three-Fourths of One Percent (-0.75%), if
Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
shall be greater than or equal to 3.0 to 1.0 as determined pursuant to
Section 7.1(i)(i) by reference to Virbac's most recent quarter-end (or
fiscal year-end) financial statements,
The interest rate on any Prime Loan shall be adjusted automatically on
and as of the effective date of any change in the Floating Rate Margin
pursuant to this definition.
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
6. The definition of "Letter of Credit Commitment Fee Rate" in
Section 2 of the Loan Agreement shall be deleted in its entirety and in its
place shall be substituted the following:
Letter of Credit Commitment Fee Rate shall mean One Percent
(1.00%) per annum for all Letters of Credit issued up to and including
April 30, 2001, and thereafter, commencing on the first day of the
second month following each fiscal quarter-end or fiscal year-end, the
"Letter of Credit Commitment Fee Rate" shall (based upon Virbac's ratio
of Consolidated EBITDA to Consolidated Debt Service as of the end of
the immediately preceding quarter (or fiscal year) determined by
reference to Virbac's quarter-end (or fiscal year-end) financial
statements for such preceding fiscal quarter-end (or fiscal year-end)),
(i.e., for each Letter of Credit issued after the period beginning May
1, 2001 by referencing Virbac's March 31, 2001 fiscal quarter-end
financial statements), mean the following:
(i) One and One-Fourth of One Percent (1.25%), if
Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
shall be less than 2.50 to 1.0 as determined pursuant to Section
7.1(i)(i) by reference to Virbac's most recent quarter-end (or fiscal
year-end) financial statements, and
(iii) One Percent (1.00%), if Virbac's ratio of
Consolidated EBITDA to Consolidated Debt Service shall be greater than
or equal to 2.50 to 1.0 as determined pursuant to Section 7.1(i)(i) by
reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements.
The Letter of Credit Commitment Fee Rate shall be fixed for each Letter
of Credit issued by Bank hereunder in accordance with the foregoing on
the date of issuance of each such Letter of Credit.
7. The definition of "LIBOR Loan" in Section 2 of the Loan
Agreement shall be deleted in its entirety and in its place shall be substituted
the following:
LIBOR Loan shall mean a portion of a Facility B Loan or a
portion of a Facility C Loan in an original principal amount of not
less than $500,000.00 which bears interest at the applicable LIBOR Rate
for an Interest Period applicable to such Facility B Loan or Facility C
Loan as selected by Borrowers in a Borrowing Notice.
8. The definition of "LIBOR Margin" in Section 2 of the Loan
Agreement shall be deleted in its entirety and in its place shall be substituted
the following:
LIBOR Margin shall mean Two Percent (2.00%) up to and
including April
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
30, 2001, and thereafter, commencing on the first day of the second
month following each fiscal quarter-end or fiscal year-end, the "LIBOR
Margin" shall, based upon Virbac's ratio of Consolidated EBITDA to
Consolidated Debt Service as of the end of the immediately preceding
quarter (or fiscal year) determined by reference to Virbac's
quarter-end (or fiscal year-end) financial statements for such
preceding fiscal quarter-end or fiscal year-end, (i.e., for the period
beginning May 1, 2001 by referencing Virbac's March 31, 2001 fiscal
quarter-end financial statements), mean the following:
(i) Two and One-Half Percent (2.50%), if Virbac's ratio
of Consolidated EBITDA to Consolidated Debt Service shall be less than
2.5 to 1.0 as determined pursuant to Section 7.1(i)(i) by reference to
Virbac's most recent quarter-end (or fiscal year-end) financial
statements,
(ii) Two and One-Fourth Percent (2.25%), if Virbac's ratio
of Consolidated EBITDA to Consolidated Debt Service shall be greater
than or equal to 2.5 to 1.0 but less than 3.0 to 1.0 as determined
pursuant to Section 7.1(i)(i) by reference to Virbac's most recent
quarter-end (or fiscal year-end) financial statements, or
(iii) Two Percent (2.00%), if Virbac's ratio of
Consolidated EBITDA to Consolidated Debt Service shall be greater than
or equal to 3.0 to 1.0 as determined pursuant to Section 7.1(i)(i) by
reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements,
The LIBOR Margin shall be determined for each LIBOR Loan for its
Interest Period as of the date two (2) Eurodollar Business Days prior
to the beginning of such Interest Period after the receipt by Bank of
the Borrowing Notice required by Section 3.2. All changes in the LIBOR
Margin shall be effective from the date of determination pursuant to
this definition for any new LIBOR Loan or new Interest Period
commencing on or after such date and shall not be retroactively
applied.
9. The definition of "Loan" in Section 2 of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
Loan shall mean each Facility A Loan, Facility B Loan and
Facility C Loan, and Loans shall mean any or all of the foregoing,
whether made as a Prime Loan or a LIBOR Loan.
10. New definitions of "Bank's Facility C Commitment," "Facility
C," and "Facility C Loan" shall be added to Section 2 of the Loan Agreement in
appropriate alphabetical order as follows:
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
Bank's Facility C Commitment shall have the meaning ascribed
hereto in Section 3.1(g).
Facility C shall have the meaning ascribed thereto in the
recitals to this Agreement.
Facility C Loan shall have the meaning ascribed thereto in
Section 3.1(g).
11. Section 3.1(a) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(a) Facility A. Subject to the terms and conditions
hereof, during the Term of this Agreement, Bank hereby agrees to make
such loans (individually, a "Facility A Loan" and collectively, the
"Facility A Loans") to Borrowers, jointly and severally, as any of the
Borrowers may from time to time request pursuant to Section 3.2 and in
Bank's discretion, to issue Letters of Credit for the account of the
Borrowers, or any of them, upon any Borrower's execution of a Letter of
Credit Application therefor pursuant to Section 3.3 (subject to Bank's
approval of the form of the Letters of Credit requested to be issued).
The maximum aggregate principal amount of Loans plus the face amount of
issued and outstanding Letters of Credit which Bank, cumulatively, may
be required to have outstanding under this Facility A at any one time
shall not exceed the lesser of Eight Million Dollars ($8,000,000.00),
or (ii) the Borrowing Base (as hereinafter defined). This commitment of
Bank is herein sometimes referred to as the "Bank's Facility A
Commitment." Subject to the terms and conditions hereof, Borrowers may
jointly and severally borrow, repay and reborrow such sums from Bank,
provided, however, that the aggregate principal amount of all Facility
A Loans outstanding hereunder plus the face amount of Letters of Credit
issued and outstanding hereunder at any one time shall not exceed
Bank's Facility A Commitment.
12. Section 3.1(b) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(b) Facility B. Subject to the terms and conditions
hereof, during the Term of this Agreement, Bank hereby agrees to make
such loans (individually, a "Facility B Loan" and collectively, the
"Facility B Loans") to Borrowers, jointly and severally, as any of the
Borrowers may from time to time request pursuant to Section 3.2. The
aggregate principal amount of Facility B Loans which Bank,
cumulatively, shall be required to have outstanding hereunder at any
one time shall not exceed Three Million One Hundred Thousand Dollars
($3,100,000.00) from April 4, 2001 until February 27, 2002 which amount
shall be reduced on February 28, 2002 to the
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
new maximum Facility B amount of Two Million Nine Hundred Fifty
Thousand Dollars ($2,950,000.00) for the period up to and including May
30, 2002, further reducing on May 31, 2002 to the new maximum Facility
B amount of Two Million Eight Hundred Thousand Dollars ($2,800,000.00)
for the period up to and including August 30, 2002, further reducing on
August 31, 2002 to the new maximum Facility B amount of Two Million Six
Hundred Fifty Thousand Dollars ($2,650,000.00) for the period up to and
including November 29, 2002, further reducing on November 30, 2002 to
the new maximum Facility B amount of Two Million Five Hundred Thousand
Dollars ($2,500,000.00) for the period up to and including February 27,
2003, further reducing on February 28, 2003 to the new maximum Facility
B amount of Two Million Three Hundred Fifty Thousand Dollars
($2,350,000.00) for the period up to and including May 30, 2003,
further reducing on May 31, 2003 to the new maximum Facility B amount
of Two Million Two Hundred Thousand Dollars ($2,200,000.00), with the
balance of such Facility B Loans due and payable in full on July 31,
2003. This commitment of Bank as so reduced from time to time is herein
sometimes referred to as the "Bank's Facility B Commitment." Subject to
the terms and conditions hereof, Borrowers may jointly and severally
borrow, repay and reborrow such sums from Bank, provided, however, that
the aggregate principal amount of all Facility B Loans outstanding
under Bank's Facility B Commitment at any one time shall not exceed
Bank's Facility B Commitment then available hereunder. Bank and
Borrowers agree that all Loans (but not including Letters of Credit
which in all cases shall be issued under Facility A) outstanding under
this Agreement shall first be made under Facility C up to the Bank's
Facility C Commitment, and then shall be made under Facility B up to
the Bank's Facility B Commitment, and lastly shall be made under
Facility A, and all principal payments shall be applied, first to the
outstanding principal under Facility A until paid in full, then to the
outstanding principal under Facility B, and then to the outstanding
principal under Facility C. The Facility B Loans may be either (a) a
Prime Loan, (b) a LIBOR Loan or (c) any combination thereof, as
determined by the Borrowers and notified to the Bank in accordance with
Section 3.2 herein, provided, however, that the amount of any Loan
under this Section 3.1(b) which is a LIBOR Loan shall be for an
aggregate principal amount of at least $500,000.00 or any larger
multiple of $100,000.00.
13. Section 3.1(c) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(c) Borrowing Base. For purposes of computing the amount
of the Bank's Facility A Commitment, the "Borrowing Base" shall mean
the sum of:
(i) Seventy-Five Percent (75%) of the face
amount of Eligible Accounts of each of the Borrowers, plus
(ii) the lesser of (A) Fifty Percent (50%) of the
Eligible Inventory
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
of each of the Borrowers, or (B) $4,000,000.00.
14. Section 3.1(d) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(d) Borrowing Base Certificate. Borrowers shall deliver
to Bank on the twenty-eighth (28th) day of each month, commencing in
the month of April, 2001, a borrowing base certificate in the form of
Exhibit A attached to the Third Amendment to Credit Agreement dated as
of April 4, 2001 made by and among Borrowers and Banks (the "Third
Amendment") and incorporated herein by reference (a "Borrowing Base
Certificate") setting forth:
(i) the Borrowing Base and its components as of
the end of the immediately preceding month;
(ii) the aggregate principal amount of all
outstanding Facility A Loans and the aggregate face amount of all
issued and outstanding Letters of Credit;
(iii) the difference, if any, between the
Borrowing Base and the aggregate principal amount of all outstanding
Facility A Loans plus the aggregate face amount of all issued and
outstanding Letters of Credit;
(iv) the maximum available principal amount and
the aggregate principal amount of all outstanding Facility B Loans; and
(v) the maximum available principal amount and
the aggregate principal amount of all outstanding Facility C Loans.
The Borrowing Base shown in such Borrowing Base Certificate shall be
and remain the Borrowing Base hereunder until the next Borrowing Base
Certificate is delivered to Bank, at which time the Borrowing Base
shall be the amount shown in such subsequent Borrowing Base
Certificate. Each Borrowing Base Certificate shall be certified
(subject to normal year-end adjustments) as to truth and accuracy by
the President, principal financial officer or controller of each of the
Borrowers.
All references in the Loan Agreement and the other Transaction Documents to the
"Borrowing Base Certificate" and other references of similar import shall
hereafter be amended and deemed to refer to a Borrowing Base Certificate in the
form of the Borrowing Base Certificate, as amended and restated in the form
attached hereto as Exhibit A.
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
15. Section 3.1(f) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(f) Mandatory Repayments - Facility B. Commencing with
the next such principal reduction on February 28, 2002, and on each May
31, August 31, November 30 and February 28 thereafter during the Term
of this Agreement, Borrowers shall jointly and severally pay to Bank in
immediately available funds an amount equal to the difference between
Bank's Facility B Commitment (as reduced on such date pursuant to the
terms of Section 3.1(b) above) and the aggregate principal amount of
all Facility B Loans then outstanding. In the event any such mandatory
repayment shall be due on a day which is not a Business Day, then such
payment shall be due on the immediately preceding Business Day. Such
mandatory payments shall be applied first to the outstanding Facility B
Loans which are Prime Loans, and second to Facility B Loans which are
LIBOR Loans, provided, however, that any such repayment of LIBOR Loans
made on any date other than the last day of the applicable Interest
Period for such LIBOR Loan shall be subject to payment jointly and
severally by Borrowers of the amounts due under Section 3.8 below.
16. New Sections 3.1(g) and 3.1(h) shall be added to the Loan
Agreement immediately following Section 3.1(f) therein as follows:
(g) Facility C. Subject to the terms and conditions
hereof, up to and including November 30, 2001, Bank hereby agrees to
make such loans (individually, a "Facility C Loan" and collectively,
the "Facility C Loans") to Borrowers, jointly and severally, as any of
the Borrowers may from time to time request pursuant to Section 3.2.
The aggregate principal amount of Facility C Loans which Bank,
cumulatively, shall be required to have outstanding hereunder at any
one time shall not exceed One Million Dollars ($1,000,000.00) from
April 4, 2001 until August 30, 2001 which amount shall be reduced on
August 31, 2001 to the new maximum Facility C amount of Seven Hundred
Fifty Thousand Dollars ($750,000.00) for the period up to and including
September 29, 2001, further reducing on September 30, 2001 to the new
maximum Facility C amount of Five Hundred Thousand Dollars
($500,000.00) for the period up to and including October 30, 2001,
further reducing on October 31, 2001 to the new maximum Facility C
amount of Two Hundred Fifty Thousand Dollars ($250,000.00) for the
period up to and including November 29, 2001, with all Facility C Loans
to be repaid in full and the Bank's Facility C Commitment to terminate
on November 30, 2001. This commitment of Bank as so reduced from time
to time is herein sometimes referred to as the "Bank's Facility C
Commitment." Subject to the terms and conditions hereof, Borrowers may
jointly and severally borrow, repay and reborrow such sums from Bank,
provided, however, that the aggregate principal amount of all Facility
C Loans outstanding under Bank's Facility C Commitment at any one time
shall not exceed Bank's Facility C Commitment then available hereunder.
Bank and Borrowers agree that all Loans (but not including Letters of
Credit which in all cases shall be issued under Facility A) outstanding
under this Agreement shall first be
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
made under Facility C up to the Bank's Facility C Commitment, and then
shall be made under Facility B up to the Bank's Facility B Commitment,
and lastly shall be made under Facility A, and all principal payments
shall be applied, first to the outstanding principal under Facility A
until paid in full, then to the outstanding principal under Facility B,
and then to the outstanding principal under Facility C. The Facility C
Loans may be either (a) a Prime Loan, (b) a LIBOR Loan or (c) any
combination thereof, as determined by the Borrowers and notified to the
Bank in accordance with Section 3.2 herein, provided, however, that the
amount of any Loan under this Section 3.1(g) which is a LIBOR Loan
shall be for an aggregate principal amount of at least $500,000.00 or
any larger multiple of $100,000.00.
(h) Mandatory Repayments - Facility C. Commencing with
the first such principal reduction on August 31, 2001, and on September
30, 2001, October 31, 2001 and November 30, 2001 thereafter, Borrowers
shall jointly and severally pay to Bank in immediately available funds
an amount equal to the difference between Bank's Facility C Commitment
(as reduced on such date pursuant to the terms of Section 3.1(g) above)
and the aggregate principal amount of all Facility C Loans then
outstanding. In the event any such mandatory repayment shall be due on
a day which is not a Business Day, then such payment shall be due on
the immediately preceding Business Day. Such mandatory payments shall
be applied first to the outstanding Facility C Loans which are Prime
Loans, and second to Facility C Loans which are LIBOR Loans, provided,
however, that any such repayment of LIBOR Loans made on any date other
than the last day of the applicable Interest Period for such LIBOR Loan
shall be subject to payment jointly and severally by Borrowers of the
amounts due under Section 3.8 below.
17. Section 3.2 of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
3.2 Procedure for Borrowing. Subject to the terms and
conditions hereof, Bank shall cause the Loans to be made to Borrowers,
and shall convert outstanding Prime Loans under Facility B and Facility
C to LIBOR Loans or vice versa or shall continue any outstanding LIBOR
Loan as a LIBOR Loan for a new Interest Period, at any time and from
time to time during the Term of this Agreement upon timely prior oral
or written notice ("Borrowing Notice") from any of the Borrowers to
Bank specifying:
(i) the desired amount of the Facility A Loan,
Facility B Loan or Facility C Loan requested which in the case of a
LIBOR Loan under Facility B or Facility C shall be in a principal
amount of at least Five Hundred Thousand Dollars ($500,000.00);
(ii) whether such Loan shall be a new Loan under
Facility A, Facility B or Facility C, or a conversion of all or a
portion of any presently
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EXHIBIT I - CREDIT AGREEMENT AMENDMENT
outstanding Facility B Loan or Facility C Loan from the Prime Rate to
the LIBOR Rate, or vice versa, or a continuation of an expiring LIBOR
Loan for a new Interest Period;
(iii) if a new Loan under Facility B or Facility
C, whether such Loan is to be a Prime Loan or a LIBOR Loan;
(iv) in the case of a LIBOR Loan, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period;
(v) the date on which the proceeds of any new
Loan are to be made available to any of the Borrowers or the date on
which the new interest rate is to take effect for any outstanding
Facility B Loan or Facility C Loan being converted or continued by
Borrowers, which shall be a Business Day;
(vi) that on the date of, and after giving effect
to, such Loan, no Default or Event of Default under this Agreement has
occurred and is continuing; and
(vii) that on the date of, and after giving effect
to, such Loan, all of the representations and warranties of Borrowers
contained in this Agreement are true and correct in all material
respects as if made on the date of such Loan.
A Borrowing Notice shall not be required in connection with a Prime
Loan made to cover any overdraft in Virbac's operating account on a
day-to-day basis as set forth herein. A Borrowing Notice, if in
writing, shall be in the form of the notice attached as Exhibit B to
the Third Amendment. Each Borrowing Notice must be received by Bank not
later than 10:00 a.m. (St. Louis time) on the Business Day on which a
Prime Loan is to be established, and not later than 10:00 a.m. (St.
Louis time) on the second Eurodollar Business Day prior to the date on
which a LIBOR Loan is to be established or continued, as the case may
be; provided, however, that notwithstanding the foregoing, in addition
to and without limiting the rights and remedies of the Bank under
Section 8 hereof, so long as any Default or Event of Default under this
Agreement has occurred and is continuing, Borrowers shall not be
permitted to renew any LIBOR Loan as a LIBOR Loan or to convert any
Prime Loan into a LIBOR Loan. If the Bank does not receive a Borrowing
Notice for the continuation of an existing LIBOR Loan for a new
subsequent Interest Period pursuant to the preceding sentence within
the applicable time limits specified therein, Borrowers shall be deemed
to have elected to convert such LIBOR Loan on the last day of the
current Interest Period with respect thereto to a Prime Loan in the
principal amount of such expiring LIBOR Loan on such date. All Loans
which bear interest at a particular LIBOR Rate for a particular
Interest Period shall constitute a single LIBOR Loan. Borrowers may not
have outstanding and Banks shall not be obligated to make more than
three (3) LIBOR Loans at any one time. A Borrowing Notice shall not be
revocable by Borrowers.
12
VIRBAC CORPORATION PAGE 27
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
Subject to the terms and conditions hereof, provided that Bank has
received the Borrowing Notice, Bank shall (unless Bank determines that
any applicable condition specified in Section 4 has not been satisfied)
pay to Borrowers, or any of them, the Loan proceeds of any new Loan in
immediately available funds not later than 2:00 p.m. (St. Louis time)
on the Business Day specified in said Borrowing Notice. Each of the
Borrowers hereby authorizes Bank to reasonably rely on telephonic,
telegraphic, telecopy, telex or written instructions of any person
identifying himself as a person authorized to request a Loan or make a
repayment hereunder, and on any signature which Bank believes to be
genuine, and Borrowers shall be bound thereby in the same manner as if
such person were actually authorized or such signature were genuine.
Borrowers further request and authorize Bank, in Bank's sole and
absolute discretion, to make a Prime Loan to Borrowers hereunder at the
end of each day in which Borrowers shall have an overdraft (negative
ledger balance) in Virbac's operating account (Account No. 9800801785)
with Bank after crediting all deposits received in immediately
available funds and debiting all withdrawals made and checks presented
against such account and honored by Bank as of such date and after
funding any advances to or receiving any collected balances on such day
from the "zero balance" operating accounts of PM Resources (Account No.
9800802535), St. XXX (Account No. 9800805419), Virbac AH (Account No.
9821908926) and Francodex (Account No. 9821909433) with Bank to cover
withdrawals made and checks presented on such date and after crediting
all deposits received in immediately available funds on such date,
which Prime Loan shall be in the amount of such overdraft without any
other request or authorization therefor from Borrowers and without
notice to Borrowers. Similarly, Borrowers request that Bank apply any
collected balances (after funding advances to or receiving collections
from the "zero balance" accounts of PM Resources, St. XXX, Virbac AH
and Francodex) in excess of a mutually predetermined amount remaining
at the end of any day in Virbac's operating account to the repayment of
the principal balance of Borrowers' Obligations outstanding as Prime
Loans under the Note. Borrowers also hereby agree jointly and severally
to indemnify Bank and hold Bank harmless from and against any and all
claims, demands, damages, liabilities, losses, costs and expenses
(including, without limitation, Attorneys' Fees) relating to or arising
out of or in connection with the acceptance of instructions for making
Loans or repayments hereunder. Contemporaneously with the execution of
the Third Amendment (amending this Agreement), Borrowers shall execute
and deliver to Bank a Note of Borrowers dated as of April 4, 2001 and
payable jointly and severally to the order of Bank in the original
principal amount of Twelve Million One Hundred Thousand Dollars
($12,100,000.00) in the form attached as Exhibit C to such Third
Amendment and incorporated herein by reference (as the same may from
time to time be amended, modified, extended or renewed, the "Note").
All references in the Loan Agreement and the other Transaction Documents to a
"Borrowing Notice" and other references of similar import shall hereafter be
amended and deemed to refer to a Borrowing Notice in the form of the Borrowing
Notice, as amended and restated in the form attached hereto as Exhibit B.
13
VIRBAC CORPORATION PAGE 28
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
18. Section 3.4(b) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(b) Each Facility B Loan and Facility C Loan shall bear
interest prior to maturity at a rate per annum equal to such of the
following as any of the Borrowers shall select in the applicable
Borrowing Notice to Bank:
(i) the Prime Rate plus Floating Rate Margin,
each in effect from time to time during the period when such Facility B
Loan or such Facility C Loan is outstanding, with changes in the
interest rate taking effect on the date a change in the Floating Rate
Margin occurs pursuant to the definition thereof or the date a change
in the Prime Rate is made effective generally by Bank; or
(ii) the LIBOR Rate applicable for an Interest
Period selected by any Borrower for such Facility B Loan or such
Facility C Loan in the Borrowing Notice applicable for such Facility B
Loan or such Facility C Loan.
19. Section 3.15 of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
3.15 Commitment Fee. Borrowers shall jointly and severally
pay to Bank on the fifteenth (15th) day following the end of each
January, April, July and October during the Term of this Agreement and
on the last day of the Term hereof, a commitment fee (the "Commitment
Fee") in an amount equal to:
(a) One-Eighth of One Percent (0.125%) per
annum, if Virbac's ratio of Consolidated EBITDA to Consolidated Debt
Service shall be greater than or equal to 2.5 to 1.0 as determined
pursuant to Section 7.1(i)(i) by reference to Virbac's most recent
quarter-end (or fiscal year-end) financial statements, and
(b) Three-Sixteenths of One Percent (0.1875%)
per annum, if Virbac's ratio of Consolidated EBITDA to Consolidated
Debt Service shall be less than 2.5 to 1.0 as determined pursuant to
Section 7.1(i)(i) by reference to Virbac's most recent quarter-end (or
fiscal year-end) financial statements,
calculated on the basis of the unused Bank's Commitment during the
preceding fiscal quarter of Borrowers ending as of the last day of each
January, April, July and October, which unused Bank's Commitment shall
be arrived at by dividing the aggregate of the daily unused Bank's
Commitment for each day of that quarter as of the close of each day by
ninety (90) (or by the actual number of days for any partial quarter).
Payment of the Commitment Fee is a condition precedent to Bank's
14
VIRBAC CORPORATION PAGE 29
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
obligations to make any new Loans hereunder.
20. Section 3.16 of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
3.16 Maturity. All Loans not paid prior to July 31, 2003,
together with all accrued and unpaid interest thereon, shall be due and
payable on July 31, 2003 (as from time to time extended, if any,
pursuant to this Section, the "Maturity Date"); provided, however, that
in the event Bank, in its sole and absolute discretion, shall deliver
to Borrowers a written notice signed by Bank on or before the date one
year prior to the then current Maturity Date (and prior to any
subsequent Maturity Date thereafter if extended under this Section
3.16) of Bank's intention to extend the term of this Agreement for an
additional year, then the Maturity Date of this Agreement shall be
extended for a period of one additional year following the then current
Maturity Date. Following any such extension of the Maturity Date by
Bank, all of the outstanding principal and all accrued and unpaid
interest, fees and other amounts due under this Agreement and the Note
shall be due and payable on such new Maturity Date, unless it is again
extended by Bank, in its sole and absolute discretion, under the
foregoing sentence.
21. Section 7.1(i)(ii) of the Loan Agreement shall be deleted in
its entirety and in its place shall be substituted the following:
(ii) Maintain a minimum Consolidated Net Worth at
all times during the Term hereof of not less than the sum of: (A)
Twenty-Seven Million Two Hundred Thousand Dollars ($27,200,000.00) ,
plus (B) Seventy-Five Percent (75%) of the Consolidated Net Income of
Borrowers (with no deductions for any consolidated losses for any such
fiscal year) shown on Borrowers' audited consolidated financial
statements for each fiscal year, commencing with the fiscal year ending
December 31, 2001, such required increases to be cumulative for each
such fiscal year;
22. The first sentence in Section 9.9 of the Loan Agreement shall
be deleted in its entirety and in its place shall be substituted the following:
Bank's books and records showing the account between Borrowers and Bank
shall be admissible in evidence in any action or proceeding and shall
constitute prima facie proof thereof. Bank shall record, and prior to
any transfer of any of its Notes shall endorse on the schedules forming
a part thereof, appropriate notations to evidence (i) the date and
amount of each conversion of any portion of any Facility B Loan or
Facility C Loan to a LIBOR Loan and the principal amount, applicable
LIBOR Rate, and the applicable Interest Period with respect thereto,
and (ii) the date and amount of each payment of principal made by
Borrowers with respect to each such Loan.
15
VIRBAC CORPORATION PAGE 30
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
23. In consideration of Bank's agreement to amend the Loan
Agreement and Note as set forth herein, Borrowers agree to jointly and severally
pay to Bank an amendment fee in the amount of $7,500.00, which amendment fee is
due and payable on the date hereof and shall be fully earned on the date hereof.
24. The agreements of Bank contained herein are expressly
conditioned upon deliver by Borrowers of the following:
(a) the executed original of this Third Amendment to
Credit Agreement;
(b) the executed original of the amended and restated
Note;
(c) a copy of resolutions of the Board of Directors of
each of the Borrowers, duly adopted, which authorize the execution, delivery and
performance of this Third Amendment to Credit Agreement and the amended and
restated Note and the other Transaction Documents, certified by the Secretary of
each such Borrower;
(d) the written consent to these amendments signed by
Xxxxx Xxxxxxxxxx as holder of the subordinated debt, which consent shall be in
form and substance acceptable to Bank;
(e) such other documents as Bank may reasonably request;
and
(f) payment by Borrowers of the amendment fee required
under paragraph 23 above.
25. Borrowers hereby represent and warrant to Bank that:
(a) The execution, delivery and performance by Borrowers
of this Third Amendment to Credit Agreement and the amended and restated Note
are within the corporate powers of Borrowers, have been duly authorized by all
necessary corporate action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official. The execution,
delivery and performance by Borrowers of this Third Amendment to Credit
Agreement and the amended and restated Note do not conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under
or result in any violation of, and none of the Borrowers is now in default under
or in violation of, the terms of the Articles of Incorporation or Bylaws of such
Borrower, any applicable law, any rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory agency or instrumentality, or
any agreement or instrument to which any of the Borrowers is a party or by which
any of them is bound or to which any of them is subject;
16
VIRBAC CORPORATION PAGE 31
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
(b) This Amendment to Credit Agreement and the amended
and restated Note have been duly executed and delivered and constitute the
legal, valid and binding obligations of Borrowers enforceable in accordance with
their terms; and
(c) As of the date hereof, all of the covenants,
representations and warranties of Borrowers set forth in the Loan Agreement are
true and correct and no "Event of Default" (as defined therein) under or within
the meaning of the Loan Agreement has occurred and is continuing.
26. All references in the Loan Agreement to "this Agreement" and
any other references of similar import shall henceforth mean the Loan Agreement
as amended by this Third Amendment to Credit Agreement.
27. This Third Amendment to Credit Agreement and the amended and
restated Note shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Borrowers may
not assign, transfer or delegate any of their rights or obligations hereunder.
28. This Third Amendment to Credit Agreement and the amended and
restated Note shall be governed by and construed in accordance with the internal
laws of the State of Missouri.
29. In the event of any inconsistency or conflict between this
Third Amendment to Credit Agreement and the Loan Agreement, the terms,
provisions and conditions of this Third Amendment to Credit Agreement shall
govern and control.
30. The Loan Agreement, as hereby amended and modified, and the
amended and restated Note, as hereby amended and restated, are and shall remain
the binding obligations of Borrowers and all of the provisions, terms,
stipulations, conditions, covenants and powers contained therein shall stand and
remain in full force and effect, except only as the same are herein and hereby
specifically varied or amended, and the same are hereby ratified and confirmed.
If any installment of principal or interest on the amended and restated Note
shall not be paid when due as provided in the amended and restated Note, the
holder of the amended and restated Note shall be entitled to and may exercise
all rights and remedies under the amended and restated Note and the Loan
Agreement, as amended.
31. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWERS AND BANK FROM ANY
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWERS AND BANK
COVERING SUCH MATTERS ARE CONTAINED IN THE LOAN AGREEMENT, AS AMENDED BY THIS
AGREEMENT, WHICH CONSTITUTES A COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENTS BETWEEN BORROWERS AND BANK EXCEPT AS BORROWERS AND BANK MAY LATER
17
VIRBAC CORPORATION PAGE 32
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
AGREE IN WRITING TO MODIFY. THE LOAN AGREEMENT, AS AMENDED BY THIS AGREEMENT,
EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN) RELATING TO
THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date first written above on this _____ day of April, 2001.
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
-----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
FIRST BANK
By:
-----------------------------------------
Xxxxx X. Xxxxxx, Vice President
18
VIRBAC CORPORATION PAGE 33
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
CONSENT TO THIRD AMENDMENT TO
CREDIT AGREEMENT
The undersigned hereby consents to the terms of that certain Third
Amendment to Credit Agreement (the "Amendment"), a copy of which has been
provided to the undersigned, and the undersigned acknowledges that the execution
and delivery by Virbac Corporation (formerly known as Agri-Nutrition Group
Limited), PM Resources, Inc., Virbac AH, Inc., St. XXX Laboratories, Inc. and
Francodex Laboratories, Inc. of said Amendment will not affect or impair the
undersigned's obligations to and agreements with Bank under that certain
Subordination and Standby Agreement executed as of May 8, 1998 by the
undersigned (and as of May 14, 1998 by the Borrowers) in favor of Bank (the
"Subordination Agreement"), which obligations and agreements are hereby ratified
and confirmed. The undersigned further acknowledges and agrees that (i) all
references in the Subordination Agreement to the "Loan Agreement" and other
references of similar import shall henceforth mean the amended and restated
Credit Agreement dated as of September 7, 1999, as previously amended from time
to time, as this date amended by the Amendment, and as the same may from time to
time be further amended; and (ii) all references in the Subordination Agreement
to the "Senior Indebtedness" and other references of similar import shall
henceforth mean and include as Senior Indebtedness, the $12,100,000.00 amended
and restated Revolving Credit Note, as the same may from time to time be further
amended, and the Subordinated Indebtedness of the undersigned is and shall
remain subordinated to such Senior Indebtedness.
Dated: as of April 4, 2001.
---------------------------------
Xxxxx X. Xxxxxxxxxx
19
VIRBAC CORPORATION PAGE 34
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
EXHIBIT A
BORROWING BASE CERTIFICATE
This Borrowing Base Certificate is delivered pursuant to Section 3.1(d)
of that certain Credit Agreement dated September 7, 1999, by and between Virbac
Corporation, PM Resources, Inc., St. XXX Laboratories, Inc., Virbac AH, Inc.,
Francodex Laboratories, Inc. and First Bank (as amended, the "Loan Agreement").
All capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Loan Agreement.
Borrowers hereby represent and warrant to Bank that the following
information is true and correct as of _________________, 20__:
1. 75% of face amount of Eligible Accounts of PM Resources $
-------------
2. 75% of face amount of Eligible Accounts of Virbac $
-------------
3. 50% of Eligible Inventory of PM Resources, valued
at the lower of cost or market $
-------------
4. 50% of Eligible Inventory of Virbac, valued
at the lower of cost or market $
-------------
5. Sum of Items 3 and 4 above, but not to exceed $4,000,000.00 $
-------------
6. Total Borrowing Base (sum of 1, 2 and 5 above not to exceed
$8,000,000.00) $
-------------
Borrowers hereby further represent and warrant to Bank that the
following information is true and correct as of ______________________, 20___:
7. Aggregate principal amount of outstanding Facility A Loans $
-------------
8. Aggregate face amount of outstanding Letters of Credit $
-------------
20
VIRBAC CORPORATION PAGE 35
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
9. Total Outstanding (Item 7 plus Item 8) $
-------------
10. Borrowing Base Excess (Deficit) (Item 6 minus Item 9)
(Negative amount represents mandatory repayment) $
-------------
If Item 10 above is negative, this Borrowing Base Certificate is
accompanied by the mandatory repayment required by Section 3.1(e) of the Loan
Agreement.
11. Maximum Available principal amount of Facility B Loans $
-------------
12. Aggregate principal amount of outstanding Facility B Loans $
-------------
13. Maximum Available principal amount of Facility C Loans $
-------------
14. Aggregate principal amount of outstanding Facility C Loans $
-------------
This Borrowing Base Certificate is dated the _____ day of
__________________, 20__.
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
21
VIRBAC CORPORATION PAGE 36
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
EXHIBIT B
[Borrowers' Letterhead]
[Date]
First Bank
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President
Re: Credit Agreement dated September 7, 1999
(as from time to time amended, the "Agreement")
Gentlemen:
Pursuant to the Agreement, the undersigned desire to (check one):
______ Borrow on _________________, ______, an aggregate principal amount
of $____________ as a (check one) ____ Facility A Loan, or ____
Facility B Loan, or ____ Facility C Loan, and if a Facility B Loan
or Facility C Loan, such Loan shall be (check one) ____ a Prime
Loan or ____ a LIBOR Loan for an Interest Period of ____ months.
OR
______ Convert $_________________ of its outstanding Prime Loans under
(check one) ____ Facility B or ____ Facility C on
__________________, _____ to a LIBOR Loan for an Interest Period
of ______________ months.
OR
______ Convert $_____________ of its LIBOR Loan under (check one) ____
Facility B or ____ Facility C with an Interest Period expiring on
_____________, ______ to a Prime Loan on such date and to extend
$________________ of such LIBOR Loan under (check one) ____
Facility B or ____ Facility C as a new LIBOR Loan for an Interest
Period of _____ months commencing on such date.
22
VIRBAC CORPORATION PAGE 37
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
Accordingly, the undersigned request that you make available
to the undersigned said amount on said date.
The undersigned hereby represent and warrant to you that as of the date
hereof all of the representations and warranties of each of the undersigned
contained in the Agreement are true and correct and no Default or Event of
Default (as defined in the Agreement) has occurred and is continuing, and that
no such Default or Event of Default will result from the loan requested hereby.
Very truly yours,
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
23
VIRBAC CORPORATION PAGE 38
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
EXHIBIT C
Revolving Credit Note
$12,100,000.00 St. Louis, Missouri
April 4, 2001
FOR VALUE RECEIVED, on July 31, 2003 (or such subsequent anniversary
thereof as determined pursuant to Section 3.16 of the Loan Agreement
(hereinafter identified)), the undersigned, VIRBAC CORPORATION, a Delaware
corporation (formerly known as Agri-Nutrition Group Limited), PM RESOURCES,
INC., a Missouri corporation, ST. XXX LABORATORIES, INC., a California
corporation, FRANCODEX LABORATORIES, INC., a Kansas corporation and VIRBAC AH,
INC., a Delaware corporation (collectively, the "Borrowers"), hereby jointly and
severally promise to pay to the order of FIRST BANK, a Missouri state banking
corporation ("Bank"), the principal sum of Twelve Million One Hundred Thousand
Dollars ($12,100,000.00), or such lesser sum as may then be outstanding
hereunder. The aggregate principal amount which Bank shall be committed to have
outstanding under Facility A hereunder at any one time shall not exceed the
lesser of (i) Eight Million Dollars ($8,000,000.00), or (ii) the "Borrowing
Base" (as defined in the Loan Agreement (as hereinafter defined)), which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, subject to
the terms and conditions hereof and of the Loan Agreement hereinafter
identified. The aggregate principal amount which Bank shall be committed to have
outstanding under Facility B hereunder at any one time shall not exceed Three
Million One Hundred Thousand Dollars ($3,100,000.00) as reduced from time to
time pursuant to Section 3.1(b) of the Loan Agreement hereinafter identified,
which amount may be borrowed, paid, reborrowed and repaid, in whole or in part,
subject to the terms and conditions hereof and of the Loan Agreement hereinafter
identified. The aggregate principal amount which Bank shall be committed to have
outstanding under Facility C hereunder at any one time shall not exceed One
Million Dollars ($1,000,000.00) as reduced from time to time pursuant to Section
3.1(g) of the Loan Agreement hereinafter identified, which amount may be
borrowed, paid, reborrowed and repaid, in whole or in part, subject to the terms
and conditions hereof and of the Loan Agreement hereinafter identified.
Borrowers further jointly and severally promise to pay to the order of
Bank interest on the principal amount from time to time outstanding hereunder
prior to maturity from the date disbursed until paid at the rate or rates per
annum required by the Loan Agreement or otherwise selected by any of the
Borrowers as set forth in the Loan Agreement. All accrued and unpaid interest
with respect to each principal disbursement made hereunder shall be payable on
the dates set forth in Section 3.6 of the Loan Agreement and at the maturity of
this Note, whether by reason of acceleration or otherwise. After the maturity of
this Note, whether by reason of acceleration or otherwise, interest shall accrue
and be payable on demand on the entire outstanding principal balance hereunder
until paid at a rate per annum equal to Three and One-Half Percent (3.50%) over
and
24
VIRBAC CORPORATION PAGE 39
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
above the Prime Rate, fluctuating as and when said Prime Rate shall change. All
payments hereunder (other than prepayments) shall be applied first to the
payment of all accrued and unpaid interest, with the balance, if any, to be
applied to the payment of principal. All prepayments hereunder shall be applied
solely to the payment of principal.
All payments of principal and interest hereunder shall be made in
lawful currency of the United States in Federal or other immediately available
funds at the office of Bank situated at 000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the holder hereof shall designate in writing.
Interest shall be computed on an actual day, 360-day year basis.
Bank may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. Bank's books and records showing the account between Bank and Borrowers
shall be admissible in evidence in any action or proceeding and shall constitute
prima facie proof of the items therein set forth.
This Note is the Note referred to in that certain Credit Agreement
dated as of September 7, 1999 made by and between Borrowers and Bank (as the
same may from time to time be amended, the "Loan Agreement"), to which Loan
Agreement reference is hereby made for a statement of the terms and conditions
upon which the maturity of this Note may be accelerated, and for other terms and
conditions, including prepayment, which may affect this Note. All capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Loan Agreement.
This Note is secured by that certain Security Agreement dated as of May
14, 1998 executed by Virbac Corporation in favor of Bank, by that certain
Security Agreement dated as of May 14, 1998 and executed by PM Resources, Inc.
in favor of Bank, by that certain Security Agreement dated as of May 14, 1998
executed by St. XXX Laboratories, Inc. in favor of Bank, by that certain
Security Agreement dated as of September 7, 1999 and executed by Virbac AH, Inc.
in favor of Bank and by that certain Security Agreement dated as of September 7,
1999 executed by Francodex Laboratories, Inc. in favor of Bank (as the same may
from time to time be amended, the "Security Agreements"), to which Security
Agreements reference is hereby made for a description of the security and a
statement of the terms and conditions upon which this Note is secured.
This Note is also secured by that certain Deed of Trust and Security
Agreement dated September 9, 1993 and executed by PM Resources, Inc. in favor of
Xxxxxxxxx X. Xxxxxx, as trustee for Bank (as the same may from time to time be
amended, the "Deed of Trust"), to which Deed of Trust reference is hereby made
for a description of the security and a statement of the terms and conditions
upon which this Note is secured.
This Note is also secured by that certain Agreement of Pledge dated as
of September 7, 1999 and executed by Virbac Corporation in favor of Bank and by
that certain Agreement of Pledge dated as of September 7, 1999 and executed by
Virbac AH, Inc. in favor of Bank (collectively, as the same may from time to
time be amended, the "Pledge Agreements"), to which Pledge Agreements reference
is hereby made for a description of the additional security and a statement of
the terms and
25
VIRBAC CORPORATION PAGE 40
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
conditions upon which this Note is further secured.
If any of the Borrowers shall fail to make any payment of any principal
of or interest on this Note as and when the same shall become due and payable,
or if an "Event of Default" (as defined therein) shall occur under or within the
meaning of the Loan Agreement, any of the Security Agreements, the Deed of Trust
or any of the Pledge Agreements, Bank may, at its option, terminate its
obligation to make any additional loans under this Note and Bank may further
declare the entire outstanding principal balance of this Note and all accrued
and unpaid interest thereon to be immediately due and payable.
In the event that any payment of any principal of or interest on this
Note shall not be paid when due, whether by reason of acceleration or otherwise,
and this Note shall be placed in the hands of an attorney or attorneys for
collection or for foreclosure of any of the Security Agreements, the Deed of
Trust or any of the Pledge Agreements securing payment hereof or for
representation of Bank in connection with bankruptcy or insolvency proceedings
relating hereto, Borrowers jointly and severally promise to pay, in addition to
all other amounts otherwise due hereon, the reasonable costs and expenses of
such collection, foreclosure and representation, including, without limitation,
reasonable attorneys' fees and expenses (whether or not litigation shall be
commenced in aid thereof). All parties hereto severally waive presentment for
payment, demand, protest, notice of protest and notice of dishonor.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Missouri.
VIRBAC CORPORATION
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
PM RESOURCES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
26
VIRBAC CORPORATION PAGE 41
EXHIBIT I - CREDIT AGREEMENT AMENDMENT
ST. XXX LABORATORIES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
VIRBAC AH, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
FRANCODEX LABORATORIES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
